Academic journal article Journal of Criminal Law and Criminology

Estimating the Prevalence of Entrapment in Post-9/11 Terrorism Cases

Academic journal article Journal of Criminal Law and Criminology

Estimating the Prevalence of Entrapment in Post-9/11 Terrorism Cases

Article excerpt

TABLE OF CONTENTS  INTRODUCTION                                                         612 I. BACKGROUND                                                        617        A. The FBI's Change in Strategy                               617        B. The Entrapment and Outrageous Government Conduct           Defenses                                                   619        C. The Prevalence of Entrapment                               621 II. POTENTIAL ENTRAPMENT INDICATORS                                  622        A. Responding to Potential Objections                         623        B. The Nature of the Indicators                               626        C. Indicators Derived from Case Law                           627        D. The Core Six Entrapment Factors                            628        E. Other Case-Law-Derived Factors                             634        F. Indicators Derived from Terrorism Cases                    638             1. Problematic Informant or Government Practices         638             2. The Initial Targeting of the Defendant                642        G. Characteristics of the Defendant                           646 III. A DATABASE OF TERRORISM PROSECUTIONS                            649 IV. RESULTS                                                          652        A. An Overview of the Database: Descriptive Statistics        652        B. Indicators in the Cases with Informants or Agents          654 V. DISCUSSION OF RESULTS                                             658        A. Number of Indicators Per Case                              658        B. The Prevalence of Entrapment, Borderline-Entrapment, and           Outrageous Government Conduct                              660        C. How Many Post-9/11 Terrorism Cases Are "Real"?             660        D. Entrapment Among the Highest-Profile Terrorism Cases       664        E. Counterterrorism Policy Recommendations                    665        F. Suggested Doctrinal Reforms                                666             1. Reasonable Suspicion Requirement                      667             2. Entrapment Doctrine                                   668             3 Reflections                                            672 CONCLUSION                                                           672 APPENDIX A: CODING CRITERIA FOR ENTRAPMENT INDICATORS                675 

INTRODUCTION

Entrapment allegations abound in contemporary terrorism cases. (4) Even in cases in which the defendants themselves do not raise the entrapment defense, legal scholars, journalists, and defense attorneys often argue that government informants are tempting defendants into crimes that would never otherwise have been committed. (5) Frequently, the claim is not only that the defendant, without an informant's involvement, would never have committed this particular crime, but also that the defendant would never have committed any terrorist offense. (6)

This critique appears to have merit, at least with respect to the most egregious cases. The case of James Cromitie, who was prosecuted for plotting to bomb synagogues and shoot down military planes, is a prime example. U.S. District Court Judge Colleen McMahon, in the quote introducing this Article, made clear that she believed Cromitie to have had no ability to carry out any terrorist act whatsoever. (7) As Judge McMahon wrote in another order, Cromitie "would not have had the slightest idea how to make [a terrorist attack] happen." (8) At sentencing, she emphatically stated, "I believe beyond a shadow of a doubt that there would have been no crime here except the government instigated it, planned it, and brought it to fruition." (9)

Despite these statements, however, Judge McMahon refused to rule that Cromitie was entrapped as a matter of law, and she sentenced him to twenty-five years in prison. (10) The Second Circuit upheld her decision, though only over the vigorous dissent of Chief Judge Dennis Jacobs. …

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